to sell the land for the then market price, which could change
at a later date. Negotiations resulted in the additional deposit
being set at $450,000, higher than the $200,000 figure the buyer
initially offered. The total deposit at slightly more than seven
per cent was not in an unfair range.

[35] As the closing date approached, the buyer attempted to
escape from the transaction by raising spurious complaints,
which led to the application. The application judge rightly found
that there was no merit to the complaints. At the same time, the
seller remained ready and willing to close and was prepared to
extend without additional payment.

[36] In my view, nothing in this sequence suggests that the
seller unconscionably abused its bargaining power. Perhaps its
position might be described as hard bargaining, but it was not
unconscionable in the commercial context.

[37] I note in passing that the application judge’s reduction in
the overall deposit to $350,000 was $150,000 less than what the
total deposit would have been if the buyer’s voluntary offer of an
additional $200,000 for the extension of the closing date had
been accepted and added to the then total deposit of $300,000.
There was no warrant in unconscionability for such a reduction.

F. Disposition

[38] I would allow the appeal and vary the judgment to
increase the forfeiture from $350,000 to the contractual amount
of $750,000, together with any accrued interest to be paid to the
seller, plus costs to the respondent in the amount of $10,000 for
the appeal and $15,000 for the application, both inclusive of disbursements and taxes.

Appeal allowed.

Borrelli, in his Capacity as Trustee of the SFC LitigationTrust v. Chan